The presidency just got a little bit smaller, as President Biden declined to invoke his executive privilege, instead choosing to force President Trump to withstand testimony at trial from his inner circle.   

A letter to President Trump from Special Counsel Jack Smith noting that President Biden is declining to invoke that privilege to block testimony in the election interference case underscores the lengths to which decisions by the current president will affect the legal fate of the frontrunner to challenge the incumbent in 2024. 

Mr. Trump shared the note in a filing to Judge Tanya Chutkan that seeks to have the criminal case against him dismissed on constitutional, statutory, and selective prosecution grounds. It explains that in five cases, the “incumbent White House” declined to “invoke executive privilege over certain witness testimony.” 

While the government turned these materials over to Mr. Trump as demanded by the Brady rule, a corollary of the 14th Amendment, they have not been publicly unsealed. It is likely, though, that the privilege in question relates to testimony of those within the ambit of the Trump White House. These could include Vice President Pence, Mr. Trump’s chief of staff, Mark Meadows, and other aides.

The surreal spectacle of President Biden taking a pass on blocking the upper echelon of the Trump White House from testifying against his predecessor is attributable to the quirks of executive privilege, a doctrine crucial to Mr. Trump’s stance that the case against him is a nonstarter because of the office he once held.

The privilege is implicitly sourced to Article II of the Constitution. The Supreme Court, in United States v. Nixon, held that while “nowhere in the Constitution … is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President’s powers, it is constitutionally based.”

Putting a parenthesis around the Nixon administration, case law regarding executive privilege is scarce. Mr. Trump maintains that because he was the president when the actions for which he has been charged occurred, he should enjoy the office’s protection even after he departed the White House. Mr. Smith argues that the privilege attaches to the office, not the man.

The Supreme Court has held that executive privilege is qualified, not absolute. In that latter category is the Speech or Debate protections afforded lawmakers. In Nixon, though, the Nine wrote that the “impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts.”

The Constitution does not use the phrase “executive privilege” or mark its boundaries. It also, though, does not explicitly signal that the protections of the presidency expire when a new chief executive is sworn in. A president who understands that his camarilla could be forced to disclose their communications when he is out of office could be reluctant to turn to them for frank counsel.    

A qualified privilege means that the premise that underlies its existence — that the executive power of the United States is vested in one person, the president — is balanced with the needs of the prosecution and the interests in gaining access to testimony that could furnish evidence at trial. Judges and justices are asked to apply a balancing test to chart the privilege’s limits.

By holding back on asserting executive privilege, Mr. Biden has cleared the way for Messrs. Pence and Meadows, at least, to speak to Mr. Smith. ABC News reports that the former vice president has already delivered what it calls “harrowing” testimony and painted a picture of a “constitutional crisis” facilitated by “crank” attorneys. 

While it is not known what Mr. Meadows has disclosed, he has allegedly entered into a cooperation agreement with Mr. Smith under which he would exchange truthful testimony for a lesser sentence, presumably without jail time. The former aide de camp faces separate criminal charges in Georgia for his actions challenging the 2020 presidential election.